CLA-2 CO:R:C:G 087133 SLR
District Director of U.S. Customs
300 South Ferry Street
Terminal Island, CA 90731
RE: Protest No. 2704-89-002117;
Bear Bank
Dear Sir:
This correspondence constitutes our decision regarding
Application for Further Review of Protest No. 2704-89-002117,
filed by Gootnick Enterprises on June 2, 1989.
FACTS:
The submitted sample, item #0225, is a partially stuffed
bear figure measuring approximately 8-1/2 inches in height and 7
inches in width. The head and appendages of the bear are
stuffed, while the torso incorporates a hollow plastic container
for the holding of coins. The sample contains a coin slot and
bottom plug for the removal of coins. Its exterior is made of
soft plush pile fabric.
A shipment of the subject merchandise was liquidated in
subheading 6307.90.9030, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for other made up
articles of textile materials, dutiable at 7 percent ad valorem.
This provision is now subheading 6307.90.9590.
The importer requests classification in subheading
9503.49.0020, HTSUSA, which provides for toys representing
animals or non-human creatures, dutiable at 6.8 percent
ad valorem. It is claimed that the subject item enjoys duty free
status by virtue of subheading 9902.95.02, HTSUSA. Accordingly,
the protestant requests that the entry in question be
re-liquidated under subheadings 9503.49.0020 and 9902.95.02,
resulting in a refund of duties.
ISSUE:
Whether the subject article is classifiable in subheading
9503.49.0020, HTSUSA, and, if not, what classification is
appropriate.
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LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
Heading 9503, HTSUSA, provides, in pertinent part, for
"[o]ther toys." The Explanatory Notes to Chapter 95 indicate
that: "This Chapter covers toys of all kinds whether designed for
the amusement of children or adults." The phrase "designed for
the amusement of" is generally understood to indicate that the
use of an article will be a factor when classification as a toy
is being considered.
Additional U.S. Rule of Interpretation 1(a), HTSUSA,
provides that absent language to the contrary:
[A] tariff classification controlled by use
(other than actual use) is to be determined
in accordance with the use in the United States
at, or immediately prior to, the date of
importation, of goods of that class or kind
to which the imported goods belong, and
the controlling use is the principal use.
Therefore, in order to be classified as a toy, the bear bank
would need to be principally used for amusement. We do not
believe this to be the case.
Here, the subject bear bank serves primarily as a receptacle
or storage space for coins. The commercial viability depends
primarily on the item functioning as a bank, not as a toy
plaything. While Explanatory Note (a)(21) to heading 9503
indicates that toy money banks are included within the heading,
we do not interpret this provision as encompassing static,
passive child or adult novelty banks. In light of this
reasoning, the bear bank does not qualify as a toy within the
purview of Chapter 95, HTSUSA; and, correspondingly, it is not
classifiable in any of the headings which accompany that chapter.
Since proper classification cannot be determined by
applying GRI 1, reference to the subsequent GRI's is necessary.
GRI 2 contains two clauses, the second of which pertains to
mixtures or combinations of a material or substance, and goods
consisting of two or materials or substances. GRI 2(b) further
provides: "The classification of goods consisting of more than
one material or substance shall be according to the principles
of Rule 3." As the instant bear bank is made up of two different
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materials (and, thus, classifiable in two separate headings:
heading 3926, for other articles of plastic; and heading 6307,
for other made up articles of textile materials), GRI 3 must be
consulted.
Here, the two headings at issue refer to part only of the
subject bear bank, and according to GRI 3(a) are to be regarded
as equally specific, thereby making resort to GRI 3(b) necessary.
According to GRI 3(b), mixtures and composite goods consisting of
different materials, or made up of different components, shall be
classified as if they consisted of the component or material
which gives them their essential character. The Explanatory
Notes to GRI 3(b) indicate that essential character may be
determined by considering "the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
the constituent material in relation to the use of the good."
While the plastic container allows for the holding of coins,
the bank's textile covering comprises the bulk of the article and
provides for the product's visual appeal. Consequently, the
textile covering represents the essential character of the
subject bear bank.
HOLDING:
Item #0225 is classifiable in subheading 6307.90.9590,
HTSUSA, which provides for other made up articles, including
dress patterns, other, other, other, other. The applicable rate
of duty is 7 percent ad valorem. The bear bank was correctly
classified as liquidated.
You should deny the protest in full. A copy of this
decision should be sent to the protestant along with the Form 19
Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division